A fair trial for James ‘Whitey’ Bulger?

Share via e-mail

US District Judge Richard G. Stearns was an assistant US attorney in the period Whitey Bulger is said to have committed crimes.

Take ego out of the equation. Take out one jurist’s desire to preside over the trial of the century. What’s left is good reason for US District Court Judge Richard G. Stearns to step down from the James “Whitey” Bulger trial.

A judge like Stearns, who worked as a federal prosecutor in Boston while Bulger was roaming the streets with blessings from the FBI and US Attorney’s office, should not preside over his trial.

Bulger is charged with 19 murders that took place during the 1970s and ’80s. The details now known about the snuffing out of so many lives are horrible. And so are the unique circumstances surrounding Bulger’s alleged killing spree, because they tell the story of justice corrupted.

This notorious gangster was also a valued FBI informant. That some FBI agents and federal prosecutors knew about his activities is a crucial issue in the case. Indeed, Bulger’s lawyer, J.W. Carney Jr., argues that his client was never prosecuted because he was granted immunity for all crimes, although Carney has produced no evidence to back up that assertion.

Stearns was an assistant US attorney and chief of the criminal division during much of the period in which Bulger is said to have been
involved in heinous crimes. But Stearns insists that he knew nothing about Bulger’s secret deal with the FBI and had no knowledge of any case or investigation in which Bulger was a subject or target.

In a July 17 memorandum, Stearns wrote that he has “no doubt whatsoever about my ability to remain impartial.” Twice, he declined to recuse himself, leaving his written memo as his final word on the subject. So now it’s up to a federal appeals court to decide whether another judge should hear the case.

At a hearing last week before the Court of Appeals for the First Circuit, Senior Judge Bruce M. Selya highlighted Stearns’ problem: It’s not whether the judge has any doubts about his ability to be fair and impartial; it’s whether the public does.

“My concern is about public confidence and public perception. I’m concerned about the public perception as to whether the defendant can get a fair trial under these circumstances,” said Selya, a member of a three-judge panel that heard arguments on Bulger’s request for a new trial judge.

Bulger was a fugitive for 17 years when he was finally caught in California in June 2011. Capturing him after all those years is starting to look a lot easier than bringing him to trial, let alone convicting him.

For sure, Carney’s effort to push Stearns off the case bogs down an already-slow moving process. It could push back a trial that’s now scheduled to begin in June, two years after Bulger’s capture. But conceding Bulger’s interest in delay doesn’t change the fact that letting Stearns preside could taint the trial in the public’s eyes.

“He said during that entire period he was never aware at any time of any investigation by anyone of James Bulger,” said Carney at the appeals court hearing, according to a report by WBUR’s David Boeri. Given Stearns’ position as chief of the criminal division, that “flies in the face of common sense and experience,” added Carney.

Stearns was not a member of the New England Organized Crime Strike Force, which dealt directly with Bulger. But as chief of the criminal bureau, he worked in the same office. It’s hard to believe he never heard any Bulger buzz.

What is driving him now to keep the case? It’s likely a mixture of professional pride, and an understandable belief in his own integrity. No one — including journalists — likes to be told their natural biases undercut a genuine commitment to objectivity.

But maybe Stearns is also driven by the special arrogance that springs from a prosecutor’s sense of righteousness, and the contempt for the defense that goes with it. If so, that’s all the more reason for him to recuse himself.

Bulger has been convicted in books and movie scripts. But Hollywood’s standard of proof is not enough. His guilt must still be proven beyond reasonable doubt in a court of law. The victims of his alleged crimes, and their survivors, deserve closure. That can only happen after a fair trial that is free from nagging questions about a judge’s bias.